Vishnu Barium Private Limited vs Deputy Commissioner Of Customs ...
2022 Latest Caselaw 6679 AP

       THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
                               AND
        THE HON'BLE SRI JUSTICE B. SYAMSUNDER

                WRIT PETITION NO. 30740 of 2021

ORDER: (Per Hon'ble Sri Justice C. Praveen Kumar)

1.      Heard Mr. Karan Talwar, learned Counsel for the

Petitioner and Government Pleader for Commercial Tax.

With their consent, the Writ Petition is disposed of at the

admission stage.


2.      The facts, in issue, which lead to filing of the present

Writ Petition, are as under:


 i.     The Petitioner herein is engaged in manufacture and

        export of Barium Carbonate through Krishnapatnam

        Port.


 ii.    Foreign Trade Policy, as notified by the Central

        Government in exercise of its power under Section 5

        of the Foreign Trade (Development & Regulation) Act,

        1992, provides for provisions relating to export and

        import of goods and services. Chapter 3 deals with a

        Scheme for export of Merchandise from India and it

        also prescribes the procedure for claiming benefits
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                                            W.P.No.30740 of 2021

       under Merchandise Exports from India Scheme

       ['MEIS']. It is stated that, the exports made by the

       Petitioner are eligible for MEIS as the goods exported

       are covered under Appendix 3B of MEIS Schedule.


iii.   Computerized processing of Shipping Bills is a

       practise   adopted    under    the     Indian   Customs

       Electronic Data Interchange System ['EDI System'].

       It is stated that, under EDI System, the shipping bills

       are filed electronically and processed online. It is

       further stated that, the Customs Authorities rely on

       Export General Manifest ['EGM'] as prescribed under

       Export Manifest (Vessels) Regulations, 1976, to

       certify proof of export. It is on the basis of these

       certifications, the exporter can claim the benefit of

       exports. The EGM ensures that all goods that leave

       India and its territorial waters are duly accounted for.

       After filing of EGM, the shipping bill is moved to next

       queue (i.e. DBK, HIST etc.) for further processing.


iv.    During the years 2017-2018 to 2019-2020, the

       Petitioner exported several consignments claiming
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                                           W.P.No.30740 of 2021

     MEIS benefits. However, for 59 shipping bills, in the

     said   period,   the   agent     of   the   Petitioner   has

     inadvertently ticked the box as "No" in the reward

     column of the shipping bill in-stead of "Yes" while

     uploading the shipping bills on the Electronic Data

     Interface of the Customs Department ['EDI']. It is said

     that, in the shipping bills filed by the Petitioner, there

     is a declaration disclosing the intention of the

     Petitioner to claim reward under MEIS stating that

     "they intend to claim rewards under MEIS". In-spite

     of the same, inadvertently the agent of the Petitioner

     did not tick the box as "Yes".


v.   On realizing the mistake, a letter is said to have been

     written on 22.02.2021 to Respondent No. 1 seeking

amendment of shipping bills under Section 149 of the

Customs Act, 1962, in order to claim the benefit of

MEIS on 59 shipping bills. Number of letters were

said to have been written, but, however, vide letter,

dated 21.09.2021, the Respondent No.1 rejected the

request for amending shipping bills. It is said that,

CPK, J & BSS, J W.P.No.30740 of 2021

the Order came to be passed without giving an

opportunity of hearing.

vi. Apart from that, it is also stated in the Order that

amendment of shipping bills in EDI System is not

allowed as EGMs are closed for all the 59 shipping

bills for the period 2017-2018 to 2019-2020 and that

the shipping bills are in the HIST status. As per the

Trade Facilitation Notice bearing No. 02/2015-CUS,

dated 07.05.2015, issued by the Commissioner of

Customs, Vijayawada, request for amendment of

shipping bills after one month from the date of Letter

Export Order, cannot be allowed. Hence, the present

Writ Petition came to be filed seeking (i) issuance of

Writ of Mandamus by setting-aside the Trade

Facilitation Notice bearing No. 02/2015-CUS, dated

07.05.2015, issued by Respondent No. 6 to the extent

it prescribes time limit to amend the shipping bill and

also set aside the letter, dated 21.09.2021, issued by

Respondent No. 1 rejecting the request of the

Petitioner under Section 149 of Customs Act, for

amending 59 shipping bills, filed by the Petitioner, for

CPK, J & BSS, J W.P.No.30740 of 2021

the period 2017-18 to 2019-20 as illegal, improper

and ultra vires to Section 149 of Customs Act, and

also in violation of Articles 14, 19(1)(g) and 265 of the

Constitution of India; (ii) to direct Respondent No. 1

to amend 59 shipping bills filed by the Petitioner for

the period 2017-18 to 2019-20 in order to avail

benefit of MEIS; and (iii) further direct Respondent

Nos. 1 to 4 to facilitate the Petitioner to make

application either manually or online to claim the

benefit of MEIS in relation to 59 shipping bills.

3. Sri. Karan Talwar, learned Counsel for the Petitioner,

mainly submits that the agent of the Petitioner has

inadvertently ticked the box as "No" in the reward column

of the shipping bill, in-stead of "Yes" while uploading the

shipping bills on the EDI and that it was a mistake

committed by its agent. He further submits that, if really

the intention was not to claim benefit/reward, the 59

shipping bills, which were uploaded, would not have

disclosed the reward claim. It is stated that, vide

Notification, dated 16.09.2021, Respondent No.4

prescribed last date for submission of application for scrip

CPK, J & BSS, J W.P.No.30740 of 2021

based Foreign Trade Policy including MEIS as 31.12.2021.

It is urged that, in-spite of the Petitioner approaching

Respondent No. 1 in February 2021 itself for amendment

of shipping bills, the same was rejected in September,

2021, without giving an opportunity of hearing. It is further

contended that, applications came to be submitted

manually within the time line fixed. It is further submitted

that, as an abundant caution, the Petitioner herein will be

submitting application manually along with the un-

amended shipping bills for availing scrips benefit under

MEIS during pendency of Writ Petition as the Petitioner

reserves his right thereafter to file a complete application

along with amended shipping bills with DGFT authorities,

subject to outcome of the Writ Petition.

4. (i) Counter came to be filed by Respondent Nos. 1 and

6 disputing the averments made in the affidavit filed in

support of the Writ Petition. A perusal of the counter would

show that the allegation made in the affidavit that the

Petitioner approached the Respondent immediately on

noticing the error committed is incorrect. As per the

counter, though the first shipping bills of the year 2017-

CPK, J & BSS, J W.P.No.30740 of 2021

18, was filed on 13.04.2017, the Petitioner approached

Respondent No. 1 for amendment of the shipping bills only

on 22.02.2021 i.e., after lapse of four [04] years. Referring

to Section 149 of the Customs Act, 1962, it is urged that,

the Petitioner has not sought for any benefit under the

MEIS as they have ticked "No" box in all the 59 shipping

bills filed during the period 2017-18 to 2019-20.

(ii) Insofar as amendment of shipping bills are

concerned, it is submitted that EGMs for all the shipping

bills filed during the period 2017-18 to 2019-20 are under

HIST Status and, as such, amendments to the shipping

bills in EDI cannot be carried out. It is said that, time limit

for any EDI system for making necessary amendments is

30 days. In the absence of any explanation given for

abnormal delay, the request of the Petitioner cannot be

considered.

(iii) It is further pleaded in the counter that, Section 149

of the Customs Act, 1962, allows amendments to the

shipping bills to be carried out only on the basis of

documentary evidence, which was in existence at the time

CPK, J & BSS, J W.P.No.30740 of 2021

of export. Since, the Petitioner filed documents, viz.,

shipping bills electronically in EDI system indicating the

option under the MEIS Scheme as "No" and, as such, the

amendment cannot be allowed to be carried out under the

provisions of Section 149 of the Customs Act, 1962.

(iv) It is further urged that, the vessel has been cleared

because of the option exercised while clicking the system

and after clearance of the material, a request is now made

seeking amendment enabling them to claim benefit under

MEIS, which cannot be permitted. In other words, his

argument appears to be that, the Petitioner intends to

claim the benefit, after export of goods to foreign country

by making a false declaration, which cannot be permitted

at this length of time. Since, the export is based on the

option exercised; amendment at this length of time cannot

be permitted.

5. In reply, learned counsel for the petitioner relies upon

Notification No.26/2015-20 dated 16.09.2021 [Annexure-9]

to contend that at least for the period commencing from

01.07.2018, the petitioner is entitled for the relief. He also

CPK, J & BSS, J W.P.No.30740 of 2021

relies upon the judgment of Gujarat High Court in

M/s.Mahalaxmi Rubtech Limited vs. Union of India 1 in

support of his plea, more particularly, having regard to the

fact that the said Circular No.36/2010, dated 23.09.2010,

was declared as ultra vires to Section 149 of the Customs

Act, 1962.

6. The point that falls for consideration is, whether the

request of the Petitioner, seeking amendment of shipping

bills, can be accepted?

7. In order to appreciate the same, it would be

appropriate to refer to the letter, dated 21.09.2021, issued

by the Deputy Commissioner [Export Assessment],

rejecting the request, of the Petitioner, for amendment of

shipping bills, which is as under:

"Please refer to your letter dated 16.08.2021 (received in this office on 23.08.2021) on the above subject matter.

2. As seen from your letter referred above that you have requested for amendment of total 59 Shipping Bills filed by you during the period from 2017-18 to 2019-20. It is

2021-TIOL-538-HC-AHM-CUS

CPK, J & BSS, J W.P.No.30740 of 2021

also mentioned in your letter dated 08.06.2021 that your agent inadvertently missed to tick the option of claiming MEIS in all the Shipping Bills filed during the above period of 3 years and you have requested for amendment of all the said Shipping Bills to the effect that the same were filed with the claim of MEIS at the applicable rate.

3. It is seen from the EDI System that EGMs are closed for all the 59 Shipping Bills filed during the period from 2017-18 to 2019-20 and the Shipping Bills are under HIST status and hence amendment of the Shipping Bills in EDI system is not allowed.

4. Further, as per the Trade Facilitation Notice No.02/2015-CUS dated 07.05.2015 issued by the Commissioner of Customs, Vijayawada, request for amendment of Shipping Bills after one month from the date of LEO shall not be entertained.

5. In view of the above, your request for amendment of the Shipping Bills filed by you during the period from 2017-18 to 2019-20 could not be considered."

8. From the above, it is clear that, the request for

amendment of shipping bills came to be made nearly three

years after submission of shipping bills. It is also an

CPK, J & BSS, J W.P.No.30740 of 2021

admitted fact that, the amendment is sought after the

entire consignment/vessel has been dispatched from the

port.

9. As seen from the counter, filed by Respondent Nos. 1

and 6, the first shipping bill, which was filed on

13.04.2017 claiming benefit under MEIS, contains a

reference with regard to claim made. But, however, the

agent of the Petitioner is said to have clicked "No" box in-

stead "Yes" box in the application.

10. As seen from the record, the request of the petitioner

for availing Scrip benefit under MEIS came to be made four

years after the goods were dispatched. It is no doubt true

that the petitioner in their application expressed their

intent to claim rewards under Merchandise Exports Forex

Bank, but, in the reward column namely as to whether

they intend to claim reward on the scheme, the petitioner

has ticked the box as "No". At first blush, the argument of

Sri Karan Talwar, learned counsel for the petitioner that it

was mistakenly ticked appeared to be impressive, for the

reason that the Court proceeded on a premise that all the

CPK, J & BSS, J W.P.No.30740 of 2021

59 bills were uploaded or submitted through online on the

same day. But, a close perusal of the record, proved to be

otherwise. The material filed along with the writ petition

would disclose that these shipping bills came to be made

not on a single day but on different dates. The total

number of shipping bills, which are 59 in number, relate to

years 2017-18 [22], 2018-19 [11] and 2019-20 [26]. The

first 22 bills for the year 2017-18 came to be submitted

from 13.04.2017 to 03.04.2018. The shipping bills for the

years 2018-19 from 20.04.2018 to 03.04.2019 and a third

set off 26 bills for the year 2019-20 from 12.04.2019 to

04.07.2019. Things would have been different, had the

petitioner submitted all the 59 bills on one day and then

clicked a wrong button. But, here is a case where these 59

bills were submitted online on various dates covering a

period of three years. The mistake if any that has crept in

could have been verified and rectified at the earliest. It is

very difficult to believe that the same mistake would have

been continued over the years without verifying the same,

more so, when a request for conversion to MEIS came to be

CPK, J & BSS, J W.P.No.30740 of 2021

made after the dispatch of the entire goods to foreign

countries.

11. At this stage, learned counsel for the petitioner brings

to the notice of the Court the Notification No.26/2015-20

dated 16.09.2021, which postulates that last date for

submitting online applications [Scrip based Schemes],

stands revised to 31.12.2021 for the following schemes.

(i) For MEIS (for exports made in the period (s) 01.07.2018 to 31.03.2019, 01.04.2019 to 31.03.2020 and 01.04.2020 to 31.12.2020.

      (ii)    ........

      (iii)   .........

      (iv)    .........

      (v)     ...........

12. Basing on the above Notification, it is urged that the

exports made during the periods 01.07.2018 to 31.03.2019

and 01.04.2019 to 31.03.2020 and 01.04.2020 to

31.12.2020 alone gets benefit, if an application is made

before 31.12.2021. The record reveals that the petitioner

herein did make a request for the benefit under MEIS not

CPK, J & BSS, J W.P.No.30740 of 2021

only for the period referred to above but also for the earlier

period in the month of February, 2021 and for the

subsequent periods.

13. In view of the fact that a letter was addressed by the

petitioner prior to 31.12.2021 and which came to be

rejected in the month of September, 2021, learned counsel

for the petitioner would contend that the matter may be

remanded back to the authority to deal with the same in

accordance with law.

14. In other words, the argument of the learned counsel

for the petitioner appears that if the said Notification is

accepted, the petitioner would get benefit for the exports

made from 01.07.2018.

15. Since the issue involves certain factual aspects, more

particularly, as to the applicability of the Notification dated

16.09.2021 to the case on hand, we deem it proper to

remand back the matter to the first respondent to examine

the request of the petitioner in view of the Notification

referred to above and pass orders in accordance with law.

It is needless to mention that an opportunity of hearing be

CPK, J & BSS, J W.P.No.30740 of 2021

given to the petitioner to urge the legal issues involved, if

any. Accordingly, the writ petition is disposed of. There

shall be no order as to costs.

As a sequel, interlocutory applications, if any,

pending shall stand closed.

________________________________ JUSTICE C. PRAVEEN KUMAR

___________________________ JUSTICE B. SYAMSUNDER Date: 12.09.2022 SM / MS

CPK, J & BSS, J W.P.No.30740 of 2021

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE B. SYAMSUNDER

WRIT PETITION NO. 30740 of 2021 (Per Hon'ble Sri Justice C. Praveen Kumar)

Date:12.09.2022

SM / MS